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Trump Attorneys Argue Against Constitutionality of Impeachment Trial. Aired 3-3:30p ET

Aired February 09, 2021 - 15:00   ET



MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Well, a lot of Republican senators who I'm talking to, their minds are simply not changed.

They came into this believing this was an unconstitutional proceeding. They are still of the view that this is an unconstitutional proceeding. You can argue why they are making that position known, but, at the moment, nothing has changed several of these senators' minds.

One senator, Roger Wicker, who I just spoke with -- he's a Mississippi Republican senator -- he told me that he believes this impeachment team that the Democrats sent forward this time is better than the 2020 team. Of course, that prosecuted Donald Trump on two separate charges, this one, of course, on the incitement of an insurrection.

He says this is a better team this time. But then I asked him, anything in here that changed your mind? He said it no. So, he believes still this is unconstitutional, in his view. Others, such as Senator John Boozman, an Arkansas Republican, said something similar.

Headed into the impeachment trial this afternoon, a lot of these senators were simply locked into their existing position. One of them, Ron Johnson, a Republican from Wisconsin, I said, is there anything in here that you could hear that could change your mind about whether this is a constitutional proceeding or not?

He said no. He said, what about the Democrats? The Democrats have already made up their mind that it's constitutional.

So, you're getting a sense of where members are, a lot of them locked into this position right now, even though you're seeing for the first time a lot of this video evidence showing just how deadly this destruction was that virtually everybody in this building experienced while they were here.

But at the moment, you're not getting a sense many of these Republican minds are changed. This vote, of course, this afternoon determining whether or not this is constitutional. A simple majority is all that's needed. The question, though, will there be more than five Republicans who break ranks? At the moment, doesn't seem that way.

Five Republicans have previously indicated they believe it's constitutional. We will see if there are any more, guys.

JAKE TAPPER, CNN HOST: All right, Manu Raju on Capitol Hill, thanks so much.

And, Dana, I mean, one of the things that's incredible about this is, if you don't think that it is constitutional to hear an impeachment trial of a former president who is accused of violating his oath -- he swore an oath to preserve, protect and defend the U.S. Constitution -- let's listen in.

I'm sorry.

SEN. PATRICK LEAHY (D-VT): Mr. Castor has 33 minutes.


LEAHY: You may.

CASTOR: Mr. President and members of the United States Senate, thank you for taking the time to hear from me. My name is Bruce Castor. I am the lead prosecutor -- lead counsel for the 45th president of the United States.

I was an assistant DA for such a long time, I keep saying prosecutor, but I do understand the difference, Mr. Raskin.

Before I begin, I want to comment on the outstanding presentation from our opponents, and the emotion that certainly welled up in Congressman Raskin about his family being here during that terrible day.

And you will not hear any member of the team representing former President Trump say anything, but in the strongest possible way denounce the violence of the rioters and those that breached the Capitol, the very subtle of our democracy, literally the symbol that flashes on television whenever you're trying to explain that we're talking about the United States, instant symbol.

To have it attacked is repugnant in every sense of the word. The loss of life is horrific. I spent many long years prosecuting homicide cases, catching criminals that committed murders. I have quite an extensive experience in dealing with the aftermath of those things.

Certainly, as a FOP member of a member of many police organizations myself, we mourn the loss of the Capitol Police officer, who I understand is laying not too far away from here.

And, you know, many of you in this room over your careers before they reached this summit here in the Senate would have had times where you represented your local communities as assistant district attorneys, assistant commonwealth attorneys, assistant state attorneys.

And you know this to be true, that, when a horrific event occurred in your county or in your jurisdiction, if it was a state jurisdiction, you know that there was a terrible outcry, and the public immediately reacts with a desire that someone pay because really bad really bad happened.


And that is a natural reaction of human beings. It is a natural reaction of human beings, because we are generally a social people. We enjoy being around one another, even in D.C.

We recognize that people all the world over, and especially Americans, who share that special bond with one another, love the freedoms that this country gives us.

And we all feel that, if somebody is unsafe when they're walking down the street, that the next person that's unsafe could be you, your spouse, one of your children, some other person that you love and know personally.

So, you will never hear anybody representing former President Trump say anything at all, other than what happened on January 6 and the storming and the breaching of the Capitol is -- should be denounced in the most vigorous terms, nor that those persons responsible should be prosecuted to the fullest extent that our laws allow.

And, indeed, I have followed some of those cases and those prosecutions, and it seems to me that we're doing a pretty good job of identifying and prosecuting those persons who committed those offenses. And I commend the FBI and the District of Columbia police and the other agencies for their work.

It's natural to recoil. It's an immediate thing. It comes over you without your ability to stop it, the desire for retribution: Who caused this awful thing? How do we make them pay?

We recognize in the law -- and I know many of you are lawyers, probably lawyers, some of you -- I have been a lawyer 35 years -- longer than me, many longer than me, probably. And we know we have a -- we have a specific body of law that deals with passion and rage blinding logic and reason.

That's the difference between manslaughter and murder. Manslaughter is the killing of a human being upon sudden and intense provocation. But murder is done with cold blood and reflective thought.

We are so understanding of the concept that people's minds can be overpowered with emotion, where logic does not immediately kick in, that we have recognized examples that otherwise would be hearsay and said that, no, when you're driving down the street, and you look over at your wife, and you say, hey, you know what, that guy is about to drive through the red light and kill that person, your wife can testify to what you said, because, even though it's technically hearsay, it's an exception, because it's the event living through the person.

Why? No opportunity for reflective thought.

There's all sorts of examples that we recognize in the law for why people immediately desire retribution, immediately recognize in the law that people can be overcome by events.

And, you know, senators of the United States, they're not ordinary people. They're extraordinary people, in the technical sense, extraordinary people.

When I was growing up in suburban Philadelphia, my parents were big fans of Everett Dirksen from Illinois. And Senator Dirksen recorded a series of lectures that my parents had on a record. And we still know what records are, right, on the thing you put the needle down on and you play it.

And here's little Bruce 8, 9, 10 years old listening to this back in the late '60s, and I would be listening to that voice. If you ever heard Everett Dirksen's voice, it's the most commanding, gravelly voice that just oozes belief and sincerity. Must have been a phenomenal United States senator.


He doesn't -- he doesn't talk about ordinary people as we do in the law. We apply to the ordinary person standard. He talks about extraordinary people. He talks about gallant men, which is the name of the -- of the album, and now, of course, in a sign of the times, gallant men and women.

And I would watch television and I would watch Senator Goldwater, or Senator Byrd, or Senator Mansfield, Senator Dole, and I'd be fascinated by these great men. And everybody's parents say this when they're growing up. You could grow up to be a United States senator. You could do that. They're just men and women like you are.

Well, then Everett Dirksen tells us that they're not. They're gallant men and women that do extraordinary things when their country needs them to do it. United States senators really are different.

And I have been around United States senators before. Two of them in this room from Pennsylvania I like to think are friendly towards me, or at least friends of mine when we're not politically adverse. And I have been around their predecessors.

And one thing I have discovered, whether it be Democrats or Republicans, United States senators are patriots first, patriots first. They love their country. They love their families. They love the states that they represent.

There isn't a member in this room who has not used the term, "I represent the great state of" fill in the blank. Why? Because they're all great? Yes. But you think yours is greater than others, because these are your people. These are the people that sent you here to do their work.

They trusted you with the responsibility of representative government.

You know, I feel proud to know my senators, Senator Casey up here in the back, Senator Toomey over to the left. You know, it's funny. This is an aside, but it's funny. You ever notice how, when you're talking or you hear others talking about you when you're home in your state, the -- they will say, you know, I talked to my senator or I talked to somebody on the staff of my senator.

It's always my senator. Why is it that we say my senator? We say that because the people you represent are proud of their senators. They absolutely feel that connection of pride, because that's not just Pat Toomey of Pennsylvania. That's my senator from Pennsylvania or Bob Casey from Scranton. That's my senator.

And you like that. People like that. The people back home really do. And United States senators have a reputation, and it's deserved, a reputation for coolheadedness, being erudite. The men and women that we send back home to D.C. to look after our interests, we feel a sense of ownership and a sense of pride in our senators.

There's plenty of times I have been around in political gatherings where I hear, there's no way Senator Toomey's going to allow that.

I don't mean to pick on you, Pat.

But there's no way Senator Casey is going to allow that, because we feel pride and something bad is potentially in the wind, and we expect our United States senators, not reacting to popular will and not reacting to popular emotions. We expect them to do what is right, notwithstanding what is immediately and expedient that the media tells us is the topic of the day.


So, senators are patriots. Senators are family men and women. They're fierce advocates for the great state in which they represent.

And somewhere far down that list of attributes, way below patriot, and way below love of family and country, and way below fierce advocates for their states, far down -- at least that's what I thought anyway, and I still think that -- somewhere far down that list, senators have some obligation to be partisan, to represent a group of beliefs that are similar to beliefs shared by other United States senators.

I understand that. And, in fact, I have no problem with that system. It helps us debate and decide what is best for America, the robust debate of different points of view. And I dare say that Senator Schumer and Senator McConnell represent those things in this body and make sure that everything is talked out and robustly debated in this room before United States senators make a decision of extreme importance to the people they represent.

I know you aren't allowed to talk, but I don't see either one of them jumping up and saying I'm wrong about that, because I think that's what happens. I think United States senators try to listen to each others' views. I think United States senators try to do what is right for the country. And far down is partisanship.

In our system of government, and if you read The Federalist Papers, we're very fortunate, because The Federalist Papers were authored as an explanation for why it is the states, the original states, should adopt the Constitution. These were persuasive documents about why the Constitution is a good thing, because, if the individual state legislators -- legislatures didn't adopt the Constitution, we would not have it.

So, Mr. Jay and Mr. Madison Mr. Hamilton, they had an incentive to explain what they were thinking when they wrote it, because they are explained to other erudite people who represent individual states why it is that they feel this is the right thing to do.

And, in fact, as many of you well know, Madison had to promise that there would be a Bill of Rights immediately upon adoption, or we wouldn't have a Constitution. Even then, there was horse-trading going on in the legislative body of the United States.

The other day, when I was down here in Washington -- I came down earlier in the week to try to figure out how to find my way around. I worked in this building 40 years ago. I got lost then, and I still do.

But in studying the Constitution in all the years I was a prosecutor, where so many things depend on interpretations of phrases in the Constitution, I learned that this body, which one of my worthy colleagues said is the greatest deliberate body in the entire world -- and I agree -- that was -- that particular aspect of our government was intentionally created, if you read The Federalist Papers.

The last time a body such as the United States Senate sat at the pinnacle of government with the responsibility that it has today, it was happening in Athens, and it was happening in Rome.

Republicanism, the form of government Republicanism, throughout history has always and without exception fallen because of fights from within, because of partisanship from within, because of bickering from within.

And in each one of those examples that I mentioned -- and there are certainly others probably that are smaller countries that lasted for less time that I don't know about off the top of my head, but each one of them, once there was the vacuum created that the greatest deliberative bodies, the Senate of Greece sitting in Athens, the Senate of Rome, the moment that they devolved into such partisanship, it's not as though they ceased to exist.


They ceased to exist as representative democracy, both replaced by totalitarianism.

Paraphrasing the famous quote from Benjamin Franklin, who, as a Philadelphian, I feel as though I can do that, because he's a -- my founding father too -- he who would trade liberty for some temporary security deserves neither liberty nor security. If we restrict liberty to attain security, we will lose both.

And isn't the way we have enshrined in the Constitution the concepts of liberty that we think are critical, the very concepts of liberty that drove us to separate from Great Britain -- and I can't believe these fellows are quoting what happened pre-Revolution, as though that's somehow of value to us.

We left the British system. If we're really going to use pre- Revolutionary history in Great Britain, then the precedent is, we have a Parliament and we have a king. Is that the precedent that we are headed for?

Now, it's not an accident that the very first liberty -- if you grant me that our liberties are enumerated in the Bill of Rights, it's not an accident that the very first liberty in the first article of the Bill of Rights is the First Amendment, which says Congress shall make no law abridging freedom of speech, et cetera. Congress shall make no law, the very first one, the most important one, the ability to have free and robust debate, free and robust political speech.

Something that Mr. Raskin and his team brought up is that it's somehow a suggestion from former President Trump's team that, when various public officials were not denouncing the violence that we saw over the summer, that that was somehow the former president equating that speech to his own.

Not at all. Exactly backwards. I saw a headline, representative so- and-so seeks to walk back comments about -- I forget what it was, something that bothered her. I was devastated when I saw that she thought it was necessary to go on television yesterday or the day before and say she needs to walk back her comments.

She should be able to comment as much as she wants. And she should be able to say exactly as she feels. And if she feels that the supporters of then President Trump are not worthy of having their ideas considered, she should be permitted to say that. And anybody who agrees should be permitted to say they agree.

That's what we -- that's what we broke away from Great Britain in order to be able do, to be able to say what we thought in the most robust political debate. My colleague Mike van der Veen is going to give you a recitation on the First Amendment law of the United States.

I commend it to your attention the analysis that he's going to give you. I don't expect and I don't believe that the former president expects anybody to walk back any of the language. If that's how they feel about the way things transpired over the last couple of years in this country, they should be allowed to say that.

And I will go to court and defend them if anything happens to them as a result. If the government takes action against that state representative or that U.S. representative who wants to walk back her comments, the government takes -- takes action against her, I have no problem going to court and defending her right to say those things, even though I don't agree with them.


This trial is not about trading liberty for security. It's about trading -- it's about suggesting that it is a good idea that we give up those liberties that we have so long fought for. We have sent armies to other parts of the world to convince those governments to implement the freedoms that we enjoy.

This trial is about is about trading liberty for the security from the mob. Honestly. No, it can't be. We can't be thinking about that. We can't possibly be suggesting that we punish people for political speech in this country.

And if people go and commit lawless acts as a result of their beliefs, and they cross the line, they should be locked up. And, in fact, I have seen some -- quite a number of the complaints that were filed against the people who breached the Capitol. Some of them charge conspiracy. Not a single one of them, I notice, charges conspiracy with the 45th president of the United States, probably because prosecutors have an ethical requirement that they are not allowed to charge people with criminal offenses without probable cause.

You might consider that. And if we go down the road that my very worthy adversary here Mr. Raskin asks you to go down, the floodgates will open.

I was going to say it will -- instead of floodgates, I was going to say originally it will release the whirlwind, which is a biblical reference. But I subsequently learned since I got here that that particular phrase has already been taken, so I figured I better change it to floodgates.

But the political pendulum will shift one day. This chamber and the chamber across the way will change one day. And partisan impeachments will become commonplace. You know, until the impeachment of Bill Clinton, no one alive had ever lived through a presidential impeachment, not unless some of you are 150 years old.

Not a single person alive had lived through a presidential impeachment. Now most of us have lived through three of them. This is supposed to be the ultimate safety valve, the last thing that happens, the most rare treatment, and a session where this body is sitting as a court of impeachment among the most rare things it does.

So, the slippery slope principle will have taken hold if we continue to go forward with what is happening today and scheduled to happen later this week.

And after we are long done here, and after there has been a shift in the political winds, and after there is a change in the makeup of the United States House of Representatives, and maybe a change in the makeup of the United States Senate, the pressure from those folks back home, especially for members of the House, is going to be tremendous, because, remember, the founders recognized that the argument that I started with, that political pressure is driven by the need for immediate action, because something under contemporary community standards really horrific happened.

And the people represented by the members of the United States House of Representatives become incensed.